C N .: J - gpo.gov · CORREA ZAYAS v. ESTRADA-FEBO Page 6 . 12. After moving from the house in Vistas de Río Grande, Estrada went to the house daily during school days to pick up

IN THE UNITED STATES COURT FOR THE DISTRICT OF PUERTO RICO

JUAN E. CORREA-ZAYAS, Plaintiff,

v.

JAIME ESTRADA-FEBO, ET AL. Defendants.

CIV. NO.: 15-1585 (SCC)

OMNIBUS OPINION AND ORDER Plaintiff Juan E. Correa-Zayas, a resident of California,

was visiting his family in Puerto Rico when he was bitten by

a dog on his face and lower jaw. The incident occurred while

Correa was walking his family dog, Boinayer at the Vistas de

Rio Grande residential community in Rio Grande, Puerto

Rico. There, he ran into “PEM”, a teenager who was walking

BJ, her family dog. BJ allegedly ran loose and attacked Correa

and Boinayer, causing Correa to suffer injuries. Correa filed

suit against PEM’s parents, Jaime Estrada-Febo and Luisa

Case 3:15-cv-01585-SCC Document 88 Filed 09/30/17 Page 1 of 19

CORREA ZAYAS v. ESTRADA-FEBO

Page 2

Miranda-Menchaca, and her stepfather, Jonathan López,

under several Puerto Rico statutes.

Now pending before the Court are Correa’s Motion for

Partial Summary Judgment and Estrada’s Cross Motion for

Summary Judgment.

I. Background

The Complaint seeks relief against Estrada, Miranda and

Lopez on the basis of three articles of the Puerto Rico Civil

Code: the general tort statute, found in Article 1802, 31

L.P.R.A. § 5141; the vicarious liability provision of Article

1803, 31 L.P.R.A. § 5142; and the absolute liability provision

in Article 1805, 31 L.P.R.A. § 5144. Plaintiff also raised claims

against the insurance companies that issued policies covering

the events.

The claims based on Articles 1802 and 1805 were asserted

against all three individual defendants, whereas the Article

1803 vicarious parental claims were asserted as to both

parents, and then subsequently dismissed with prejudice as

to Estrada, who is not the custodial parent. See Docket No. 24.



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Correa’s Motion for Partial Summary Judgment is

premised on the absolute liability provision of Article 1805.

Docket No. 55. Co-defendants opposed and filed a cross-

motion for summary judgment. Docket No. 67-1. They alleged

that partial summary judgment should be entered in favor of

Estrada because he was not the possessor of the dog at the

time of the incident.

Plaintiff replied to defendants’ opposition to his motion

for summary judgment, and answered Estrada’s Motion for

Partial Summary Judgment. Docket No. 72. Defendants

surreplied. Docket No. 81.

II. Factual Findings

The following factual findings are taken from the parties’

statements of uncontested facts (“SUF”) and supporting

documentation. In accordance with Local Rule 56, the court

credits only facts properly supported by accurate record

citations. See Local Rule 56(e). The court has disregarded all

arguments, conclusory allegations, speculation, and

improbable inferences disguised as facts. See Forestier Fradera

v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006);



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Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st

Cir.1990).

The court finds that the following facts are uncontested:

1. “PEM” is the child of defendants Jaime Estrada-Febo

and Luisa Miranda Menchaca. See Exhibit 1, Docket

No. 55-2, at pg. 13, lines 14-15, 18-20.

2. Estrada-Febo and Miranda-Menchaca, who never

married, lived together for many years. See Exhibit 2,

Docket No. 55-2, at pg. 11, lines 21, to pg. 12, line 5.

3. When PEM was a young child, Estrada-Febo bought a

house in the Vistas de Río Grande Urbanization. See

Exhibit 2, Estrada Deposition, Docket No. 55-2, at pg.

21, lines 7-9; Exhibit 3, Miranda Deposition, Docket

No. 55-2, at pg. 11, lines 5-15; pg. 14, lines 23 to pg. 15,

line 4.1

4. When PEM was approximately five years old,

Miranda-Menchaca and Estrada-Febo bought her a

Labrador dog as a birthday present. Docket No. 55-2,

Exhibit 3, Miranda Deposition, Docket No. 55-2, pg. 15,

lines 19-25.

1 Defendants admitted Statements 1-3.



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5. In 2004, Estrada-Febo registered the dog with the

American Pet Registry. See Docket No. 55-2, Exhibit 5,

Certificate of Registration, Docket No. 55-2.

6. In the Certificate, the dog appears registered as

“Estrada’s BJ”. Exhibit 5, Certificate of Registration,

Docket No. 55-2.

7. “Jaime Estrada” was listed as the owner of the dog in

the Certificate of Registration. Id.

8. BJ received a Certificate of Pedigree as a Labrador

Retriever. See Exhibit 6, Certificate of Pedigree, Docket

No. 55-2.

9. “Jaime Estrada” was listed as the owner of the dog in

the Certificate of Pedigree. Id.

10. When PEM was approximately 14 years old, Estrada-

Febo and Miranda-Menchaca separated and Estrada-

Febo moved out of the house in Vistas de Río Grande.

Exhibit 2, Estrada Deposition, at pg. 16, line 20, to pg.

17, line 7.2

11. Miranda continued to live in the house with PEM.

Exhibit 2, Estrada Deposition, at pg. 8, lines 3-8.

2 Defendants admitted the statements contained in Paragraphs 10-17.



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12. After moving from the house in Vistas de Río Grande,

Estrada went to the house daily during school days to

pick up PEM and take her to school. Exhibit 2, Estrada

Deposition, at pg. 16, lines 3-9.

13. Jonathan López met Miranda-Menchaca in

approximately 2011. See Exhibit 4, López Deposition,

Docket No. 55-2, at pg. 9, lines 11-12.

14. López moved to Puerto Rico in approximately August,

September or October of 2012, to move in with

Miranda. See Exhibit 4, López Deposition, at pg. 9, line

17, pg. 10, line 9.

15. López and Miranda wed on October 25, 2012. Exhibit

4, López Deposition, at pg. 5, lines 2-3.

16. At the time of the incident, Estrada-Febo resided at

Borinquen Gardens. Exhibit 2, Estrada Deposition, pg.

10, lines 19-20 and 24-25.

17. Estrada continues to be the owner of the house in

Vistas de Río Grande. Exhibit 2, Estrada Deposition, at

pg. 8, lines 20-21.

18. At approximately 8:00 p.m. on October 14, 2014, PEM

was walking BJ using a leash. See Docket No. 11,

Answer to Complaint, at ¶ 18, pg. 3.



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19. At that time, Correa left his family’s home in Vistas de

Río Grande to walk his dog, Boinayer, a Great Dane.

See Docket No. 55-2 at pg. 40-47, Exhibit 8, Excerpts

from Plaintiff’s Answer to Interrogatories and Request

for Production, at pg. 4, ¶ 4.3

20. The Great Dane was in the middle of Nogal Street,

where PEM lived. See Exhibit 1, PEM Depo, at pg. 110,

lines 7-11.

21. PEM had trouble controlling the Labrador, BJ, who she

described as “being hyperactive.” BJ was pulling her in

the direction of Boinayer, and she was trying to pull

him back. See Docket No. 55-2, Exhibit 1, PEM Depo,

pg. 109-, lines 10-21; pg. 110, lines 7 to pg. 111, line 1.

22. PEM lost control of BJ. The leash slipped out of her

hands, and the dog ran away from her. Exhibit 1, PEM

Deposition, page 110, line 17 to page 111, line 1; page

111, line 17 to line 21.

23. The Labrador ran into the street in the direction of the

Boinayer. See Exhibit 8, Plaintiff’s Interrogatory

Answers, at page 5.

3 Defendants admitted the statements in paragraph 19-23.



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24. PEM began running after the dog, trying to grab him,

but when she saw the Labrador and the Great Dane

together, she was afraid and simply stopped,

becoming totally paralyzed. Exhibit 1, PEM

Deposition, page 111, line 22 to page 112, line 3; page

117, lines 1-12; Exhibit 8, Plaintiff’s Answers to

Interrogatories, page 7, last paragraph, to page 8, first

line.

25. PEM was frightened because the Great Dane was “so,

so, so, so big”, that she did not try to locate BJ’s leash

on the ground to pull him back in her direction. See

Exhibit 1, PEM Deposition, page 117, lines 7-12.

26. Both dogs were growling at each other. Exhibit 1, PEM

Deposition, page 112, lines 1-13.

27. As BJ approached them, Correa pulled back on

Boinayer’s leash. At that point, he was in control of his

dog. Exhibit 8, Plaintiff’s Answer to Interrogatories,

page 6.

28. By pulling back on the leash, Mr. Correa was

attempting to avoid contact between the dogs, to

separate them, and to give PEM the opportunity to

control BJ. Exhibit 8, Plaintiff’s Answer to



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Interrogatories, page 6.

29. He shouted to PEM to “aguanta el perro” (“grab your

dog” or “hold back your dog”). PEM did not regain

control of the Labrador. Exhibit 8, Plaintiff’s

Interrogatory Answers, page 6, first paragraph.

30. Correa continued to pull back on the leash, but he was

pulling in one direction and Boiyaner in the other, and

the leash/collar broke. Exhibit 8, Plaintiff’s

Interrogatory Answers, page 6, last full paragraph.

31. At some point, the dogs started biting each other.

Exhibit 8, Plaintiff’s Interrogatory Answers, page 6,

third paragraph, and page 7, second to last paragraph;

Docket No. 67-5, Exhibit B, PEM’s deposition, pg. 133,

lines 4-10.

32. Mr. Correa suffered injuries as a result of the incident.4

33. From 2012 onward, and at the time of the incident, BJ

was not living with Mr. Estrada Febo. See Docket No.

67-4, Exhibit A, Estrada Deposition, page 90, lines 19-

20, page 91, lines 16-17, page 92, lines 14-16, page 93,

lines 4-6.

4 The parties agree to this fact.



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34. From 2012 onward, and at the time of the incident, Mr.

Estrada was not the person who bought BJ’s food, fed

him, walked him, or bathed him. See Docket No. 67-4,

Exhibit A, Estrada Deposition, page 91, lines 4-23, and

page 92, lines 2-4, 17-22.

35. From 2012 onward, and at the time of the incident, Mr.

Estrada was not the person who took BJ to the

veterinary. See Docket No. 67-4, Exhibit A, Estrada

Deposition, page 91, lines 11-13, and 24-25, and page

92, line 1, lines 23-25.

III. Analysis

A. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff argues that Puerto Rico provides for absolute

liability for injuries caused by a dog through Article 1805, and

seeks partial judgment as a matter of law on the issue. Article

1805 provides as follows:

[t]he possessor of an animal, or the one who uses the same, is liable for the damages it may cause, even when said animal should escape from him or stray. This liability shall cease only in case the damage should arise from force majeure or from fault of the person who may have



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suffered it.5

P.R. Laws Ann. tit. 31, § 5144 (1990).

This responsibility continues even when the animal

escapes or is lost. Serrano v. Lopez, 79 D.P.R. 979, 983

(1957)(citing Ferrer v. Rivera, 56 D.P.R. 504 (1940)). In fact, it

only ceases in the two instances detailed in the statute, when

the injury is attributable to force majeure, or when it is caused

by the fault of the injured party. Id.

The parties do not contest that the first exception is not

present here, but disagree on the applicability of the second

exception, the “culpa” exoneration clause. Anticipating that

defendants would argue for its applicability, plaintiff sought

to distinguish the concept of “culpa” in the context of Article

1805, from ordinary negligence or comparative negligence.

Correa posited that the Article 1805 “culpa” turns on the

5 The original text of the statute in Spanish reads: “El poseedor de un animal, o el que se sirve de él, es responsable de los perjuicios que causare, aunque se le escape o extravíe. Sólo cesará esta responsabilidad en el caso de que el daño proviniera de fuerza mayor o de culpa del que lo hubiese sufrido.”



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origin of the chain of events, irrespective of whether another

party’s intervention “once the incident began” was erroneous.

See Docket No. 55 at pg. 7.

Following those principles and recognizing that there are

factual controversies regarding his efforts to stop the

dogfight, Correa explained that those factual discrepancies

are “irrelevant to the issue of absolute liability”6 since he did

not provoke the incident. Therefore, his intervention in the

sequence of events once BJ had already approached them is

no defense to the absolute responsibility found in Article

1805.

We take issue with such a restrictive view of the concept

of “fault” as defined in the Puerto Rico Civil Code and

interpreted in Puerto Rico Supreme Court case law,7 but our

6 See Docket No. 55, page 7, n. 5. 7 Our hesitation to follow plaintiff’s reasoning rests, partly, on the case of Beltran v. Sucn. J. Serralles, 70 D.P.R. 86 (1949), in which the Puerto Rico Supreme Court expressed that the “culpa” in Article 1805 means the same thing as it does in § 5141, where ordinary negligence is defined. Moreover, in Rivera-Pagán v. López-Santiago, 102 D.P.R. 400, 2 P.R. Offic. Trans. 500, 504 (1974), the same Court found that the absolute responsibility found in Article 1805 means merely that “negligence does not have to be proven,



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decision to deny summary judgment on this issue rests on

other grounds. We are not convinced there are material

uncontested facts supporting the conclusion that BJ set in

motion the chain of events that led to Correa’s damages.

Plaintiff’s argument only subsists under the certainty that

the event was triggered when PEM lost control of BJ and he

ran towards Boiyaner. According to Correa, his injuries were

a direct result of PEM’s loss of control. PEM admits that she

let go of BJ, but claims that the incident only escalated after

Boiyaner’s leash broke. We think this controversy is essential

to the determination of whether the exculpatory fault

provision applies in this case.

In Rivera Perez v. Carlo Aymat, 104 DPR 693, 4 P.R. Offic.

Trans. 974 (1976), the Supreme Court of Puerto Rico examined

the concept of fault and explained:

When the damage has its origin in a voluntary act of the one who suffers the same the causal relationship between the owner and his animal is broken, and in such a case the

but in no way does it prevent the imposition of concurrent liability to the joint tort-feasor of a damage caused partly by an animal.”



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victim should be placed exactly at the beginning of the chain for having unfettered with his acts the sequence fixing liability. Because this case presents as dominant element in the relationship of persons the victim's consent which the evidence shows irreproachable inasmuch as it was not contrary to legal prohibition, or to the good habits, or ineffective for any reason whatsoever, the unlawfulness is excluded according to the old maxim reiterated by Puig Brutau of volenti non fit iniuria. Id. at 978.

Although the facts before us do not reflect a voluntary act,

such as the one in Rivera-Pérez, the material controversies

preclude us from ascertaining whether the “dominant

element in the relationship” of the parties was PEM’s loss of

control, as plaintiff argues.

Given the controverted factual scenario on the key issue

of whether BJ unleashed the sequence of events, we deny

plaintiff’s request for partial summary judgment in its favor.

B. Co-defendants’ Motion for Partial Summary Judgment

Estrada’s request for partial summary disposition is also

based on Article 1805, but focuses on another aspect: whether



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the “possessor” of an animal as defined in Article 1805, is the

one that has physical control of the same, or whether other

factors must be considered. Only “[t]he possessor of an

animal, or the one who uses the same” is liable under Article

1805. See P.R. Laws Ann. tit. 31, § 5144. As expressed by the

Puerto Rico Supreme Court, “the basis of such liability rests

on a presumption of fault for lack of vigilance” because

possessing an animal requires care and supervision. Santos v.

Ramos Cobián, 87 P.R.R. 446, 448-49 (P.R. 1963)(quoting

Serrano, 79 D.P.R. at 979).

Estrada affirms that he was no longer BJ’s owner when

the events took place because he did not live in the same

household as the dog, and was not in charge of buying him

food, feeding him, bathing him, or taking him to the

veterinary. Therefore, he avers, the duty of care and

supervision of BJ did not fall on him.

Plaintiff objects and argues that numerous facts on the

record lead to the conclusion that Estrada was BJ’s owner.

Estrada and Miranda bought the dog together as a present for



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their daughter, PEM. Estrada paid for the dog. He registered

the dog with the American Pet Registry under his name, and

was listed as the owner in the Certificate of Registration and

Certificate of Pedigree. Throughout BJ’s life, both Estrada and

Miranda were listed as “owners” or “clients” on various

records of visits to veterinary clinics.

The Puerto Rico Supreme Court has examined several

cases under Article 1805 where ownership of an animal was

disputed. A review of the holdings and the reasoning behind

them reveal that the Court accords great weight to the

physical possession factor. In Torres v. Dávila, 47 D.P.R. 315

(1934), the defendant moved the Court to review the

judgment from a lower court, holding that he was the owner

of a dog that bit plaintiff’s wife. Plaintiff alleged that the dog

belonged to his chauffeur, and that he did not have physical

possession of the same. The lower court had reasoned that

even though there was evidence that the chauffeur had

received the dog as a gift, the dog was constantly seen at

defendant’s house and, therefore, defendant had physical



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control and possession of the animal. Id. at 1. Furthermore, the

Court concluded that defendant would not have tolerated the

animal’s frequent presence at his house if he was not, in fact,

his possessor within the meaning of Article 1805. The P.R.

Supreme Court agreed with the lower court’s assessment.

A few years later, in Osorio v. Taboada, 52 D.P.R. 806

(1938), the PR Supreme Court had to decide whether the

owner of the dog that attacked plaintiffs was the entity that

owned the property where the dog lived, or the defendant,

who worked on the property and was perceived by the

community as the dog’s owner. The Court held that it was not

necessary to prove that the dog belonged to the entity, it

sufficed to show that defendant was in possession and

dominion (“posesión y dominio”) of the property, as well as

the dog. Id. at pg. 4.

In Galarza v. G. Llinás & Co., 71 D.P.R. 111 (1950), the PR

Supreme Court reiterated the importance of the “possession”

component in establishing ownership of an animal in Article



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1805 cases. When analyzing whether an ox belonged to a

company or to one of the company’s alleged partners, the

Court focused on “who had immediate possession [of the ox]

on the day that the accident occurred.” Id. at 115. (Emphasis

supplied).

After conducting our review, we can safely conclude

that physical control of the animal is the predominant factor

in defining ownership in Puerto Rico Supreme Court

decisions dealing with Article 1805 liability. This element

surpassed other criteria for ownership, such as who owns the

premises where the animal is kept, (Osorio, 52 D.P.R. at 4),

who paid for the medical care of the parties injured by the

animal, (Torres, 47 D.P.R. at 1), or even who is perceived to be

the owner, (Id.).

Guided by this legal framework, we can only conclude

that Mr. Estrada has submitted evidence that would permit a

reasonable jury to conclude that he was not the immediate

possessor of BJ when the events occurred. Estrada no longer



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resided in the Vistas de Río Grande house, he was not in

charge of taking care of BJ, and, therefore, he cannot be

considered BJ’s owner for purposes of Article 1805 liability.

For this reason, we grant Estrada’s motion for partial

summary judgment.

IV. Conclusion

For the reasons stated herein, we grant Estrada’s Motion

for Partial Summary Judgment at Docket No. 67-1, and deny

Correa’s Motion for Partial Summary Judgment at Docket No.

55.

IT IS SO ORDERED AND ADJUDGED.

In San Juan, Puerto Rico, this 30th day of September, 2017.

S/ SILVIA CARREÑO-COLL

UNITED STATES MAGISTRATE JUDGE


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C N .: J - gpo.gov · CORREA ZAYAS v. ESTRADA-FEBO Page 6 . 12. After moving from the house in Vistas de Río Grande, Estrada went to the house daily during school days to pick up